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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Original

No. 2004-898

PETITION OF THE STATE OF NEW HAMPSHIRE

(State v. Campbell)

Argued: July 13, 2005

Opinion Issued: August 12, 2005

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.

Green & Utter, P.A., of Manchester (Philip H. Utter on the brief and
orally), for the defendant.

Broderick, C.J. By petition for a writ of certiorari, the State of New Hampshire
challenges a sentencing order of the Superior Court (Groff, J.). We grant the
petition, vacate the sentence and remand.

The following facts are undisputed. The defendant, Michael P. Campbell, pled guilty to
one count of operating a motor vehicle while certified as a habitual offender, see
RSA 262:23 (2004), and was sentenced on November 17, 2004. The day before sentencing, he
filed a sentencing memorandum requesting to serve a portion of his sentence in home
confinement.He based his request upon his reading of the applicable statutes,
and his right to equal protection under Part I, Articles 1 and 2 of the New Hampshire
Constitution, and the Fifth and Fourteenth Amendments to the Federal Constitution. The
trial court sentenced the defendant, in relevant part, to the Hillsborough County House of
Corrections (HOC), stand committed, for twelve months, with three months to be served at
the HOC and the remainder to be served under home confinement. The State moved to
reconsider the sentencing order, arguing that because the HOC did not have a home
confinement program, the home confinement portion of the sentence was unlawful. The motion
was denied. Thereafter, the State petitioned this court for a writ of certiorari.

Review on certiorari is an extraordinary remedy, usually available only in the absence
of a right to appeal, and only at the discretion of the court, to determine whether
another tribunal has acted illegally in respect to jurisdiction, authority or observance
of the law, or has engaged in an unsustainable exercise of discretion or has acted
arbitrarily or capriciously. Citizens of E. Derry Fire Precinct v. Town of Derry,
148 N.H. 510, 512 (2002). We exercise our power to grant the writ sparingly and only where
to do otherwise would result in substantial injustice. In re Ryan G., 142 N.H. 643,
645 (1998).

At oral argument, defense counsel informed the court that the HOC transferred the
defendant shortly after he was sentenced to a correctional facility in Cheshire County,
where the defendant was subsequently placed on home confinement. He further explained that
the incarceration and home confinement period of the defendants sentence would end
the week following oral argument. Thus, this case is moot. However, the issue raised here
is likely to recur but continue to evade review given the nature of sentences applicable
to habitual offenders. SeeConcord Orthopaedics Prof. Assoc. v. Forbes, 142
N.H. 440, 442 (1997). Accordingly, we do not dismiss the States petition for a writ
ofcertiorari.

In determining whether the trial court imposed a lawful sentence, we consider several
statutes. We begin by examining RSA 262:23, I, which provides, in relevant part:

It shall be unlawful for any person to drive any motor vehicle on the ways of this
state while an order of the director or the court prohibiting such driving remains in
effect. If any person found to be an habitual offender under the provisions of this
chapter is convicted of driving a motor vehicle on the ways of this state while an order
of the director or the court prohibiting such operation is in effect, he or she shall be
guilty of a felony and sentenced, notwithstanding the provisions of RSA title LXII, to
imprisonment for not less than one year nor more than 5 years. No portion of the minimum
mandatory sentence shall be suspended . . . . Any sentence of one year or less imposed
pursuant to this paragraph shall be served in a county correctional facility. The
sentencing court may order that any such offender may serve his or her sentence under home
confinement pursuant to RSA 651:19 based on the rules and regulations of the county
correctional facility where the sentence is to be served for the minimum mandatory term or
any portion thereof, provided the offender first serves 14 consecutive days of
imprisonment prior to eligibility for home confinement.

A sentencing court may order any person who has been committed to a correctional
institution . . . under a criminal sentence . . . to serve the sentence under home
confinement, provided the correctional facility has a home confinement program.

(Emphasis added.) RSA 651:2, V(b) (Supp. 2004) provides:

In cases of persons convicted of felonies or class A misdemeanors, or in cases of
persons found to be habitual offenders within the meaning of RSA 259:39 and convicted of
an offense under RSA 262:23, the sentence may include, as a condition of probation,
confinement to a persons place of residence for not more than one year in case of a
class A misdemeanor or more than 5 years in case of a felony. Such home confinement may be
monitored by a probation officer and may be supplemented, as determined by the department
of corrections or by the county department of corrections, by electronic monitoring to
verify compliance.

(Emphasis added.) Finally, RSA 651:2, V(e) (Supp. 2004) states:

The department of corrections and the various county departments of corrections shall
adopt rules governing eligibility for home confinement, intensive supervision and special
alternative incarceration programs.

The trial courts order denying the States motion to reconsider states, in
relevant part:

The motion to reconsider is DENIED. The Court did not suspend any portion of the
defendants mandatory minimum sentence. The Court simply ordered that four months
(now reduced to three months) of his sentence of incarceration be served at home
confinement pursuant to RSA 651:19.

RSA 651:2[,] V specifically provides that ["]in cases of persons found to be
habitual offenders within the meaning of RSA 259:39 and convicted of an offense under RSA
262:23, the sentence may include, as a condition of probation, confinement to a
person[]s place of residence . . . . Such home confinement may be monitored by a
probation officer and may be supplemented[,] as determined by the [d]epartment of
[c]orrection[s] or by the [c]ounty [d]epartment of [c]orrections, by selective monitoring
to verify compliance." The Court concedes that RSA 651:19 provides for home
confinement, "provided the correctional facility has a home confinement
program." However, RSA 651:19 and RSA 651:2[,]V are inconsistent with each other and
must be reconciled. The Court has determined that the above sentence is lawful under a
reasonable interpretation of the statute in light of the ambiguity caused by their
apparent inconsistency.

(Brackets added.)

The State maintains that the plain language of RSA 651:19 allows for home confinement
only when the correctional facility has such a program, and argues that the trial court
erred in concluding that RSA 651:2 is inconsistent with that provision. The defendant
argues that the trial courts sentencing order was lawful because the plain language
of RSA 651:19 provides two alternatives for sentencing: home confinement if the
correctional facility has a home confinement program, or home confinement under terms and
conditions ordered by the court if the facility has no such program. He further contends
that if RSA 651:19 only allows for home confinement when the correctional facility has a
home confinement program, it is inconsistent with RSA 651:2, V(b), which provides for
courts to order home confinement to be monitored by the probation department, and RSA
651:2, V(e), which requires the department of corrections and the various county
departments of corrections to develop home confinement rules. We agree with the State.

In matters of statutory interpretation, we first examine the language of the statute.
When the language of a statute is plain and unambiguous, we need not look beyond it. We
construe Criminal Code provisions according to the fair import of their terms and to
promote justice. We review the trial courts interpretation of a statute denovo.
State v. Hudson, 151 N.H. 688, 690 (2005).

RSA 262:23 provides that sentencing to home confinement for those subject to the
statute may be done "pursuant to RSA 651:19 based on the rules and regulations of the
county correctional facility where the sentence is to be served for the minimum mandatory
term or any portion thereof." The plain language of RSA 651:19 unambiguously permits
sentencing courts to order any person who has been committed to an institution other than
State prison to serve the sentence under home confinement, "provided the correctional
facility has a home confinement program." Thus, pursuant to RSA 651:19, sentencing to
home confinement under RSA 262:23 may only occur if the applicable correctional facility
has a home confinement program.

We reject the defendants attempt to read into RSA 651:19 a second circumstance
under which home confinement may be ordered. He focuses on the portion of the statute that
states:

In any case, the defendant shall first serve 14 consecutive days prior to eligibility
for home confinement, or for such other purpose as the court may deem conducive to his or
her rehabilitation, for such times or intervals of time and under such terms and
conditions as the rules and regulations of the correctional facility may allow or as the
court may order.

The defendants argument that this portion of RSA 651:19 authorizes a court to
order the terms and conditions of home confinement in the absence of a program at the
correctional facility is misplaced. The last clause of this portion of the statute allows
courts to order "times or intervals of time" and "terms and
conditions." This clause, however, does not relate back to home confinement. Rather,
it relates back to the clause that refers to "such other purpose." The term
"other" is critical here; it distinguishes what follows from "home
confinement" referenced at the beginning of this portion of the statute. Thus, the
statute authorizes courts to order "times or intervals of time" and "terms
and conditions" of matters other than home confinement, and gives no such
authorization with respect to home confinement.

RSA 651:2, V(b) permits sentences for those convicted under RSA262:23 to
include home confinement "as a condition of probation," and further specifies
that "[s]uch home confinement may be monitored by a probation officer and may be
supplemented, as determined by the department of corrections or by the county department
of corrections, by electronic monitoring to verify compliance." This provision
unambiguously provides that home confinement monitored by a probation officer is a
permissible component of a sentence under RSA 262:23 when it is a condition of probation.
Thus, RSA 651:2, V(b) does not conflict with RSA 651:19. By its clear language, RSA 651:2,
V(b) does not supplant home confinement as a portion of the mandatory minimum sentence
under RSA 262:23; it provides for home confinement as a condition of probation for those
sentenced under RSA 262:23, and allows that such home confinement may be monitored solely
by a probation officer and may be supplemented, as determined by the department of
corrections or the county department of corrections, with an electronic monitoring device.

The defendant contends that RSA 651:2, V(e) conflicts with RSA 651:19 because "it
is clear that each county department of corrections must establish rules for home
confinement [under RSA 651:2, V(e)]. Therefore, to simply assert that there can be no home
confinement because [the HOC has] no electronic bracelet program does not address the
overall issue." We disagree.

First, the fact that RSA 651:2, V(e) requires the department of corrections and the
various county departments of corrections to develop rules governing eligibility for,
among other things, home confinement, does not mean that each facility has a home
confinement program sufficient to allow a sentence to home confinement under RSA 262:23.
RSA 651:2, V(b), as discussed, allows for home confinement as a condition of probation, to
be monitored by a probation officer. RSA 651:2, V(e) is fairly read as encompassing rules
governing eligibility for home confinement both as a condition of probation, and as an
alternative to incarceration under RSA 262:23 pursuant to RSA 651:19. Thus, the mandate
regarding rules of eligibility contained in RSA 651:2, V(e) does not lead to the
conclusion the defendant would have us reach: that the absence of an electronic
monitoring, or "bracelet," program does not mean that there is no home
confinement program within the meaning of RSA 262:23 and, by reference, RSA 651:19.

Second, the statutory scheme at issue evidences the legislatures intent that an
electronic bracelet program be a component of home confinement under RSA 262:23 and RSA
651:19. RSA 651:2, V(b) allows for home confinement as a condition of probation, and
specifically notes that such home confinement may be monitored solely by a probation
officer or, as determined by the department of corrections or by the county department of
corrections, may be supplemented by electronic monitoring. RSA 262:23 and RSA651:19
simply refer to home confinement and make no allowance for monitoring by a probation
officer. The defendant does not argue that home confinement can be monitored by means
other than a probation officer or an electronic bracelet, and we are not aware of any
other means by which monitoring can be done. Thus, for purposes of this case, we assumethatany home confinement program as an alternative to incarceration for a
person convicted of driving as a habitual offender necessarily requires monitoring for
compliance by an electronic bracelet. Otherwise, the legislature would have specified, as
it did in RSA 651:2, V(b), that home confinement under RSA 262:23 and RSA651:19
could be monitored by a probation officer. Consequently, because the HOC does not have an
electronic bracelet program, it does not have a home confinement program within the
meaning of RSA 262:23 and RSA 651:19.

Accordingly, for all of the reasons discussed, we conclude that the trial court erred
in sentencing the defendant to home confinement. The parties agree that the HOC does not
have an electronic bracelet program, which, asdiscussed, we assume is a necessary
component for home confinement under RSA 262:23 and RSA 651:19. Therefore, because the
HOC, for purposes ofthis case, does not have a home confinement program under RSA
651:19, the trial court lacked authority to sentence the defendant to anything less than
the mandatory minimum sentence under RSA 262:23, which is one year of imprisonment in a
county correctional facility. SeePetition of the State of New Hampshire (State
v. Langille), 139 N.H. 705, 707-08 (1995) (mandatory minimum sentence under RSA 262:23
is one year imprisonment and courts lack legal authority to order lesser term of
imprisonment).

At oral argument, the defendant stated that his equal protection claim was not properly
before this court. As such, he has waived the issue and we decline to address it further.